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Ontario Arbitrator Says Employers Entitled to More Than a Bare Medical Certification

On January 27th, Ontario labour arbitrator George Sudykowski issued an award about the scope of information employers may generally require in a medical certificate. He held that employers need not accept a bare statement from a doctor confirming an employee’s illness:

I agree with the thrust of the British Columbia jurisprudence that it is not inordinately invasive for an employer to ask that a medical certificate include the reason for incapacity, which would appropriately consist of a general statement of the nature of the disabling illness or injury, without diagnosis or symptoms. It is not unreasonable for an employer to require an employee to provide the reason for her absence or claim for STD benefits, and the mere fact that providing that reason (i.e. the nature of her illness or injury) may suggest a diagnosis does not excuse the employee from providing the reason in order to satisfy the onus on her to justify her absence and claim for benefits even in the first instance.

He also said:

I also respectfully disagree with Arbitrator (as he then was) Whitaker’s conclusion in Re Hydro Agri Canada, supra (at page 108), that an employer is generally not entitled to require that a medical certificate include the date(s) of the relevant visit(s) to the medical health professional who provides the certificate. Not only is this at best remote confidential medical information, the date of visit(s) will both tend to confirm that the medical health professional actually saw the employee for the purpose of the certificate, and will reveal the timeliness of the visit relative to the absence in issue, which is a relevant consideration.

Arbitrator Surdykowski rejected a seemingly impassioned presentation by the Union in which it argued the importance of medical privacy, the reliability of physician statements and the weak distinction between information about “nature of the illness” and information about “diagnosis.” Mr. Sudykowski said the Union’s case rested on “selective optimism.” He also acknowledged that the disclosure of information about the nature of the illness may indicate a diagnosis, but suggested that the routine disclosure of “nature of the illness” information for the purpose of medical certification is nonetheless reasonable and appropriate.